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Dr Muriel Newman

New Race-based Legislation Tabled

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In an astonishing twist of fate, the party that came back from the wilderness on the promise of unifying the country by putting an end to divisive race-based legislation and abolishing the Maori seats is now planning to carve up New Zealand’s coastline to hand it over to selected Maori tribes. The extent of National’s reversal can be seen in the Marine and Coastal Area (Takutai Moana) Bill that was tabled in Parliament last week.[1]

Our beaches are such an intrinsic part of the common heritage of all New Zealanders that it is almost impossible to understand how a democratically elected government could even consider allocating it based on race. The Territorial Sea, which is a key part of the common foreshore and seabed area, is not only a rich source of recreational and business interests, but it plays a crucial role in national security.

However, the National Party appears prepared to trade our common heritage away for something it values more – Maori Party votes. This “beach for votes” deal continues this country on a dangerous slippery slide. National has already indicated that 10 percent of the coastline – some 2,000 km – is expected to be transferred to Maori tribes as a direct result of their law being passed. That is the distance from Cape Reinga to the Bluff wrapped around the coast and stretched out to the 12 nautical mile limit. But that will only be the start.

The Maori Party has already indicated they intend re-negotiating the foreshore and seabed issue with future governments. That means that the bar will be progressively lowered until eventually the whole of the foreshore and Territorial Sea will be owned and controlled by corporate iwi. But it won’t even stop there. Tribal leaders have already got the entire Exclusive Economic Zone out to the 200 mile limit in their sights, and anyone except the most naïve amongst us will realise that once the Prime Minister sets the country onto this particular path, Maori leaders will not stop until they control the whole of New Zealand ’s coastline.

And if anyone thinks that that may be an exaggeration, then just look at the progress Maori leader have made since 2003, when this whole fiasco first came to light.

You might recall that up until June 2003, conventional wisdom held that the foreshore and seabed was owned by the Crown on behalf of all New Zealanders. This was settled law, affirmed by a Court of Appeal decision in 1963. If Maori had thought they owned the foreshore and seabed every Treaty of Waitangi claim since historic claims were permitted in 1985 would have included such claims. None did.

However, on June 19th 2003, in a controversial decision in the Ngati Apa case, the Court of Appeal indicated that Maori were entitled to seek customary title over areas of the foreshore and seabed through the Maori Land Court . While they cautioned that there would be little if any such land with customary title left in the country, the decision opened the door to a flood of claims for the entire coastline.

Instead of appealing the decision to the Privy Council, the Labour Government decided to legislate, vesting ownership of the foreshore and seabed in the Crown and creating new rights for coastal tribes.[2]

The first of these was a ‘customary right’, which gave tribes that could prove in court that they had practiced a customary activity since 1840 in a substantially uninterrupted manner, exemptions from the need to apply for resource consents for their activities. In addition they could impose wahi tapu to prevent public access to areas they considered sacred.

The second more substantial right was a “territorial customary title”. To qualify, a group had to prove in court that they had used and occupied the area, to the exclusion of all persons who did not belong to the group, without substantial interruption since 1840 and that the group had continuous title to contiguous land. In other words, if the group did not own the land abutting the foreshore and seabed area being claimed, or if the area had been used by others who were not members of the group, then their claim would fail. However, if their claim succeeded, they could then negotiate redress with the government to establish a foreshore and seabed reserve, appoint a Board to administer it, and draw up a Charter to outline the range of negotiated activities and rights that had been agreed. These would need to comply with the RMA and national coastal policy statements. The final stage in the process involved passing legislation through Parliament.

While these rights appear generous and powerful, the process was designed to be open, by requiring proof of eligibility in court and by legislating the final deal through Parliament. Over the six years since the 2004 Act was passed, although a few groups have started the process, no claims have been finalised. Many groups opted to wait to see if a new government would change the law to make the process easier.

So how have these key provisions changed in National’s new law? The answer is that the provisions are now not only more flexible, less onerous and more generous, but the process can now be orchestrated in secret.

Firstly, National has created a whole new set of rights: Mana tuku iho, will be allocated around the entire coastline and will give all tribal groups that apply the right to participate in local conservation processes involving marine reserves, marine mammal sanctuaries, and conservation protected areas. In addition, they will have a say in all applications for concessions operating in the area including marine mammal watching. It is unclear who will pay the groups or how that money will be raised. What is clear is that un-elected tribal groups, who have no accountability to local communities, will have considerable powers over local coastal decision-making.

Secondly, Protected Customary Rights can be able to be awarded to tribal groups, for rights that have been exercised since 1840 – whether it continues to be exercised in exactly the same or a similar way, or evolves over time. In other words, the criteria surrounding customary rights has been relaxed to enable whatever the original practice has morphed into, to qualify! In addition, the powers associated with these rights have been extended, so that while rights holders can now approve or decline RMA consents in their area, their own activities are not subjected to RMA processes. Further, their activities – which can be of a commercial nature – can now be delegated or transferred to others. Also, rather than having to prove their entitlement in an open court of law, applicant groups now have the option of negotiating their deal in secret with friendly Ministers (and there is no doubt that the Hon Chris Finlayson and the Hon Pita Sharples are such Ministers, but so too may be those who follow them in successive governments)!

National has given the third level of rights, Customary Marine Title, the status of an ownership title, although it cannot be sold. It has significantly lowered the bar for a group to qualify: instead of having to own the land next door to the area being claimed, that contiguous land provision has been dropped; and instead of having to have exclusive and uninterrupted use of the area since 1840, the definition has been extended to allow ‘transfers’, not just within an applicant group, but with outsiders as well – just so long as it is all done in accordance with… wait for it… “tikanga”![3]

The powers and privileges associated with a customary marine title, which no longer need to be proven in an open court but can be negotiated with Ministers in private and passed through an Order in Council instead of an open Parliamentary process, are considerable. They entitle the group to extensive commercial benefits, which can be delegated or transferred to other groups. These powers include the right of veto over any activity within the area which may require a coastal permit (without any rights of appeal) including RMA applications, conservation permissions, and marine mammal watching permits. Customary title holders are free to mine non-nationalised minerals, and collect royalties from all such existing mineral operations (amazingly, from the time they apply for their title – not from the time it is granted!). They can develop the area, as well as designate wahi tapu to prohibit public access. National has given un-elected, unaccountable tribal title holders the right to create planning documents that not only over-ride local government, the RMA, Historic Places Trust, and other government agencies, but that have a standing that requires them to be considered in coastal policy statements.

This week’s NZCPR Guest Commentator is economist Prof Roger Bowden, who, in his opinion piece The Iwi Tax is Upon Us explains that the new bill that National is ‘slipping under the radar’ will have damaging long term economic and social fallout’:

“The revised Act (FSII) is a stunning reversal of economic agency, which in this context means that an elected government is the implied agent of those who put it into power. To be sure, it always has to be flexible agency, one that can adapt to changing circumstances. But there has to be extended consultation if so.

“In the present context, the Foreshore and Seabed Act 2010 will effectively have the status of a constitutional change for the country. The Bill satisfies two of the classical tests for an uncodified constitution such as New Zealand ’s: it creates property rights, and it cannot be easily reversed.

“For this reason alone, rushing it through to preserve a parliamentary majority is an agency breach at its most destructive. It’s a fair guess that a large number of National Party voters would be very unhappy if they realised the full implications of the Bill; and possibly already are, given the self selection bias in political polling. ‘Policy inconsistency’ is another polite name for an agency failure of this kind.”

The point is that National’s assurances that their new law guarantees free public access and little change just doesn’t stand up to scrutiny. In the present law, it is prohibited for iwi to charge for access to the public foreshore and seabed, yet that provision has been dropped by National in their new law. While the right for tribal groups to impose wahi tapu under the present law has not been an issue, since no groups have qualified, under National’s proposed law with the bar being significantly lowered, the public may well find themselves excluded from favourite picnic and fishing spots – with no rights of appeal. And while royalties and commercial returns from foreshore and seabed activities flow to the government at the present time to be used to fund our hospitals, schools and other public services, under National’s plan, they will be progressively channelled into the private coffers of corporate iwi.

Submissions on the bill will be open soon – we will keep you posted on how you can have your say on National’s alarming new law.

1.Marine and Coastal Area (Takutai Moana) Bill
2.Foreshore and Seabed Act 2004